A three- member Supreme Court bench has ruled that the Bill of the 21st Amendment to the Constitution which was presented in parliament by SJB MP Ranjith Madduma Bandara will have to be passed by a two thirds majority in parliament and a referendum because several of its clauses are inconsistent with Articles in the Constitution.
In a 76 page judgement the Court held that clauses 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 23, 24, 26, 27, 28, and 36 of the Bill contain provisions inconsistent with Article 3 read together with Article 4 (b) of the Constitution and such may be enacted only by the special majority required by Article 84 (2) and upon being approved by the people at a referendum by virtue of Article 83.
The Court said that clauses 2, 3, and 4 of the Bill are inconsistent with Article 3 read together with Article 4 (e) of the Constitution and as such may be enacted only by the special majority required by Article 84 (2) and upon being approved by the people at a referendum by virtue of Article 83.
The determination also said that clause 14 of the Bill as it presently stands is inconsistent with Article 3 read together with Article 4 (b) and as such may be enacted only by the special majority required by Article 84 (2) and upon being approved by the people at a referendum by virtue of Article 83. However, the necessity for a referendum will cease if the proposed Article 41 (a) (1) provides for the President to appoint one person as a member of the Council as his nominee and if the proposed Article 41 (a) (6) is suitably amended to remove the deeming provision set out therein.
The Court also determined that clause 19 of the Bill is consistent with Article 3 read together with Article 4 (b) of the Constitution and as such may be enacted only by the special majority required by Article 84 (2) and upon being approved by the people at a referendum by virtue of Article 83.
The Court determination also included the following:
Clause 30 (a) of the Bill seeks to limit the judicial power of the People and is therefore inconsistent with Articles 3 read together with Article 4 (c) & 4 (e) of the Constitution and as such may be enacted only by the special majority required by Article 84 (2) and upon being approved by the people at a referendum by virtue of Article 83.
Clause 39 of the Bill is so far as it seeks to repeal Article 129 (1) of the Constitution is inconsistent with Article 3 read together with Article 4 (c) of the Constitution and as such may be enacted only by the special majority required by Article 84 (2) and upon being approved by the people at a referendum by virtue of Article 83.
Clause 43 of the Bill is inconsistent with Articles 2 & 3 read together with Article 4 (b) of the Constitution and as such may be enacted only by special majority required by Article 84 (2) and upon being approved by the people at a referendum by virtue of Article 83.
Clause 51 of the Bill seeks interalia to introduce Chapter XIX -C titled National Security Council of which the Prime Minister is to be the Chairperson. The proposed Article 156 J (1) & 156J (2) are inconsistent with Articles 1, 2, and 3 read together with Article 4 (b) of the Constitution and as such may be enacted only by the special majority required by Article 84 (2) and upon being approved by the people at a referendum by virtue of Article 83.
However such inconsistency would cease if the proposed Articles 156J (1) & 156J (2) are amended to change the composition of the proposed National Security Council and make the President the Chairperson of the proposed Council.
Five petitioners had invoked the jurisdiction of the Court in terms of Article 121 (1) of the Constitution with the petitions they filed on the 23rd and 24th of My 2022. The petitioners were A.D.P.A Gooneratne, Lt.Col Anil Sumedha Amarasasekara, Hertha Dissanayakage Jayantha Kulatunga, Ballanthuduwa Achchige Nuwan Chamara Indunil and Gunadasa Suriyaarachi Amarasekara.
The petitioners prayed interalia that the Court declares that the Bill in its entirety is a violation of Articles 2, 3, 4, 12 (1), 12 (2) and 83 of the Constitution and for a determination that in addition to being passed with not less than two thirds of members of parliament voting in its favour, that the Bill must also be approved by the people at a referendum.
The Bench comprised Chief Justice Jayantha Jayasuriya, Janak De Silva and Arjuna Obeysekere.
To read the full judgement click on:SC SD 21A SJB
